United States District Court, E.D. New York
[Copyrighted Material Omitted]
For Anand Dasrath, Plaintiff: Edward J Kennedy, LEAD ATTORNEY, Phillips & Phillips Attorneys At Law, New York, NY; Jesse Curtis Rose, LEAD ATTORNEY, Phillips & Associates, Attorneys at Law, PLLC, New York, NY.
For Stony Brook University Medical Center, Mr. Peter Giacopelli, Karl Von Braun, Jeannene Strianse, Defendants: Marsha W. Yee, LEAD ATTORNEY, NYS Office of the Attorney General, Mineola, NY.
SANDRA J. FEUERSTEIN, United States District Judge.
On March 27, 2012, plaintiff Anand Dasrath (" plaintiff" ) commenced this action against his former employer, Stony Brook University Medical Center (the " Medical Center" ), alleging that he was discriminated against upon the basis of his national origin and race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e, et seq. (" Title VII" ). [Docket Entry No. 1]. On July 24, 2012, plaintiff filed an amended complaint against the Medical Center and his former supervisors, Peter Giacopelli, Karl Von Braun, and Jeannene Strianse (the " individual defendants," and together with the Medical Center, " defendants" ), asserting claims pursuant to Title VII and Article 15 of the New York Executive Law (the " New York State Human Rights Law" ) for: (1) discrimination
in violation of Title VII (Count I) (against the Medical Center only); (2) retaliation in violation of Title VII (Count II) (against the Medical Center only); (3) discrimination in violation of New York Executive Law § 296(1) (" section 296(1)" ) (Count III) (against both the Medical Center and the individual defendants); (4) retaliation in violation of New York Executive Law § 296(7) (" section 296(7)" ) (Count IV) (against both the Medical Center and the individual defendants); and (5) aiding and abetting discrimination in violation of New York Executive Law § 296(6) (" section 296(6)" ) (Count V) (against the individual defendants only). [Docket Entry Nos. 3-5] (" Am. Compl." ). Now before the Court is defendants' motion to dismiss Count I in part and Counts II through V in their entirety for failure to state a claim upon which relief may be granted. [Docket Entry No. 161. For the reasons that follow, defendants' motion is GRANTED IN PART and DENIED IN PART.
Plaintiff is of Guyanese national origin and East Indian race. Am. Compl. at ¶ 1. He was employed as a pharmacist at the Medical Center from October 5, 2006 to April 29, 2011 and worked the weekend night shift every Friday, Saturday and Sunday. Compl. at ¶ 7; Am. Compl. at ¶ ¶ 18, 31.
Plaintiff alleges that defendants discriminated against him upon the basis of his national origin and race by: (I) assigning him to work weekend night shifts every week while not assigning Caucasian pharmacists to work consecutive weekends, Am. Compl. at ¶ 31; (2) failing to give him a pay differential for working weekend night shifts while giving such a pay differential to other pharmacists, id. at ¶ 32; (3) failing to give him a bonus or salary increase at the end of 2010 while giving all other pharmacists a bonus and salary increase of between one and three thousand dollars ($1,000.00-$3,000.00), id, at ¶ 33; (4) only allowing him to perform " intravenous fluid preparations" while assigning other pharmacists " this difficult work for only portions of their shifts," id. at ¶ 34; (5) giving him a " fabricated unsatisfactory [performance] evaluation" in April 2010, id. at ¶ 41; and (6) terminating his employment in April 2011, id, at ¶ 48.
Plaintiff further alleges that Giacopelli, a Pharmacy Supervisor, Am. Compl. at ¶ 12, " engaged in . . . workplace sabotage . . . in an attempt to set [plaintiff] up for failure which [could be] then use[d] as an excuse to justify an otherwise unlawful termination," including by: (1) signing plaintiff in late for work even though he arrived on
time, id, at ¶ 36; (2) tampering with tuberculin syringes and intravenous solutions prepared by plaintiff; and (3) refusing to believe plaintiff when he told Giacopelli that an intravenous solution prepared by Von Braun had expired, id. at ¶ 38. Plaintiff also alleges that Giacopelli made derogatory statements about his national origin, including that: (1) " Guyanese people were all Bucks who did not wear clothes," id. at ¶ 23; (2) Guyanese people " did not conduct marriage ceremonies," id.; (3) Guyanese people " did not have any formal education," id.; (4) " all Guyanese men would make babies and leave the scene," id.; (5) " people from the jungles of Guyana were [in]capable of working in a responsible job as an I.V. pharmacist," id. at ¶ 26; (6) plaintiff did not " belong here," id.; (7) Giacopelli " can step on [plaintiff] like a cockroach," id, at ¶ 27; and (8) " foreigners [like plaintiff] create a lot of problems in our country," id. at ¶ 25. Also, " on a number of occasions" while plaintiff was eating lunch, Giacopelli asked him, " Is that jaguar meat you are eating? Did you kill the poor jaguar and eat its meat?" Id. at ¶ 28.
On October 9, 2009, plaintiff complained to Strianse, the " Director of Pharmacy," id. at ¶ 15, that Giacopelli was signing him in late for work when he arrived on time and was accusing him of eating jaguar meat, id, at ¶ 29. Instead of addressing the allegations, Strianse called plaintiff " violent, insubordinate, and even used racial slurs against him." Id.
On April 9, 2010, Giacopelli and Von Braun summoned plaintiff to a meeting and presented him with the front page of his performance evaluation covering the period October 2008 to October 2009 and asked him to sign it. Id. at ¶ 39; [Docket Entry No. 16-3]. When plaintiff refused to sign, Von Braun prevented him from leaving the room by blocking the door. Id. at ¶ 40. On the same day, plaintiff complained to Strianse about Giacopelli's " continued discrimination" against him, including that Giacopelli " wrote a fabricated unsatisfactory evaluation about [him] solely due to his race and national origin." Id. at ¶ 41. Strianse ignored plaintiff's complaint and failed to take any action against Giacopelli. Id.
On or about May 28, 2010, Giacopelli called plaintiff " monkey shit" and told him to " go back to the jungles of Guyana." Id. at ¶ 42. On August 28, 2010, Giacopelli told Von Braun to order plaintiff out of the sterile I.V. room to deliver I.V.'s to the pharmacy. Id. at 44. When plaintiff refused to do so because it would violate the Medical Center's sterility regulations, Von Braun wrote plaintiff up for insubordination. Id. at ¶ 44.
On September 24, 2010, plaintiff complained about Giacopelli's and Von Braun's conduct to Santo Barravecchio, the Medical Center's Labor Relations Manager, but no action was taken in response to the complaint. Id. at ¶ 45.
On April 12, 2011, plaintiff's attorney wrote a letter to the president of the Medical Center, Dr. Samuel Stanley, stating that plaintiff " recently heard through the grapevine that he [would] be terminated soon by Stony brook [sic] because of an invalid evaluation of him in 2010" and arguing that " any termination of him would be unlawful" because: (1) he never received the evaluation; (2) he was deprived of his right to appeal the evaluation; (3) the evaluation was invalid because it was completed within six (6) months of the expiration of his term; and (4) " any notice of non-renewal [of his contract] based on
the invalid evaluation would be a nullity." [Docket Entry No. 16-5] . The letter also stated that plaintiff " believes that the unfavorable evaluation and the apparent plan to terminate him as well as the related conduct of Stony Brook towards him constitute unlawful discrimination against him because of his race/national origin." Id.
On April 29, 2011, Strianse terminated plaintiffs employment " without any warning and without even providing a ...